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The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

Wednesday, 19 March 2014

Crossing the lines: Re C (2013) - procedural fairness

I thought I would offer a reminder about a case which has recently become very dear to my heart: Re C 2013 EWCA Civ 1412 and which gave rise to a number of interesting points about the way in which litigants in person could be better supported. It also shows that lines will be considered to be crossed when complainants in criminal proceedings will be compromised as independent experts

Incidentally this is one of the few cases last year where public funding was granted on an exceptional basis. Needless to say the father did not get public funding for any of the follow up:

Ryder LJ found that there had been a number of procedural irregularities throughout the proceedings which caused the decision to be unjust and wrong:

* Evidence that was adduced orally at a without notice hearing was not recorded on the face of the order, nor was a direction made that that evidence be transcribed or contained in a statement to be served on the respondent. Rule 18.10(2) FPR 2010 requires the service of evidence on a respondent in support of a without notice application unless the court orders otherwise. A respondent's right to set aside or vary a without notice order must be contained in a statement on the order (rule 18.10(3) ) which was not contained in the without notice order made.

* No explanation was given as to why the respondent's right to set aside or vary the without notice order was constrained to having to give 24 hours' notice.

* There is a need for exceptional urgency to justify a without notice order being made. There was no evidence within these proceedings of what was the pleaded exceptional urgency.

* The pre-application protocol for mediation information and assessment (PD3A) was ignored in its entirety. This protocol is not optional.

* The family court advisor became a complainant in criminal proceedings, as a result of the father's behaviour, following which he was arrested and charged with offences under section 4 of the Public Order Act 1986. It was wholly inappropriate for the family court advisor to continue to advise within the proceedings.

* The family court advisor filed a report which detailed allegations of fact by the mother against the father previously unknown to the court. It read as if the allegations were true and there was no doubt that the family court advisor believed them to be true. It was not highlighted that the facts had not been established by way of a fact finding.

* On the day of the contested welfare hearing the family court advisor filed and served a chronology of events without notice of intending to do so and without direction by the court. It was a detailed schedule of hearsay evidence. It should not have been admitted without argument as it was highly prejudicial and of questionable probative value.

* At the contested welfare hearing the family court advisor gave evidence from behind a screen. Although it was not inconceivable that a professional witness might require such assistance, an application on notice to the parties with full reasons as to why this was required should have been made.

* The assumption of alleged facts against the father when no fact finding exercise had been conducted resulted in the judge's welfare evaluation being based on a false premise.